Schmidt v. Forell

• Decision Date: 21 April 1981
• Docket Number: No. 13148,13148
• Citation: 306 N.W.2d 876
• Parties: Calvin SCHMIDT, Plaintiff and Appellant, v. Ora E. FORELL, Defendant and Appellee. . Considered On Briefs
• Court: South Dakota Supreme Court

Page 876

306 N.W.2d 876

Calvin SCHMIDT, Plaintiff and Appellant, v. Ora E. FORELL, Defendant and Appellee.

No. 13148.

Supreme Court of South Dakota.

Considered On Briefs April 21, 1981.

Decided June 10, 1981.

David L. Bergren of Bergren & Duffy, Fort Pierre, for plaintiff and appellant.

Robert D. Hofer of Riter, Mayer, Hofer & Riter, Pierre, for defendant and appellee.

HENDERSON, Justice.

Appellant Calvin Schmidt appeals from a judgment of the trial court against appellee Ora E. Forell which awarded appellant $18,954.35 stemming from a two vehicle automobile accident that occurred in December of 1976. The appellate issues for determination are whether the trial court, in determining the amount of damages, erred by failing to include (1) appellant's alleged loss of future earning capacity and (2) past and future salary expenses by reason of appellant being required to hire additional part-time employees. We affirm.

In his complaint, appellant prayed for medical expenses, damage to his automobile, pain and suffering, and lifetime loss of earnings. This matter was tried to the court without a jury in November of 1979. After considering the testimony of the parties and their respective witnesses, the trial court found in favor of appellant and made the following award of damages:

                Medical Expenses ..................................... $   354.35
                Loss of Earnings and Out-of-Pocket Expenses .......... $ 3,600.00
                Pain and Suffering, Past and Future .................. $15,000.00
                                                               ------------------
                                                                TOTAL: $18,954.35
                

As a result of the accident which prompted this suit, appellant has suffered a partial permanent disability rating of ten percent, due primarily to the incapacity and pain of his neck. This was established at trial, via deposition, by the testimony of Dr. G. M. Sanchez. The trial court stated in its findings of fact that "(a)lthough there was evidence relating to loss of earning capacity, the proof was insufficient to establish those damages with reasonable certainty."

Damages must be proven with reasonable certainty. Schmidt v. Wildcat Cave, Inc., 261 N.W.2d 114 (S.D.1977); Fredrick v. Dreyer, 257 N.W.2d 835 (S.D.1977); Swenson v. Chevron Chemical Company, 89 S.D. 497, 234 N.W.2d 38 (1975).

This Court will not set aside a lower court's findings of fact unless they are clearly erroneous. SDCL 15-6-52(a); Cunningham v. Yankton Clinic, P. A., 262 N.W.2d 508 (S.D.1978). "A finding is 'clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." In re Estate of Shabley, 85 S.D. 692, 695, 189 N.W.2d 460, 461 (1971); citing United States v. United States Gypsum Co., 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746 (1948).

Here, the bulk of appellant's evidence with regard to loss of future earning capacity was the testimony of Dr. Dennis A. Johnson, an economist from the University of South Dakota. Theorizing from a complicated formula, Dr. Johnson stated at trial that appellant would lose $97,342.00 over the course of his working lifetime...